other person in that territory, held to warrant finding that contract would eliminate competition, and hence was violative of anti-trust statutes.-McConnon & Co. v. Ralston, Tex.. 275 S. W. 165.

56. Anti-Trust Law. That buyer, purchas'ng articles outright, was largely governed by seller's suggested retail price list in disposing of articles bought, held not in itself a violation of anti-trust statutes.-W. T. Rawleigh Co. v. Fletcher, Tex., 275 S. W. 210.

57. Municipal Corporations-Bond Issue. In proceeding to validate municipal bonds issued under Municipal Utility District Act, where purpose of bonds was to obtain water supply and facilities to be used by district and to dispose of any surplus water, and intention was to take water to boundaries of district and impound it in reservoir already connecting with distribution system supplying inhabitants of part of district, fact that no system of distribution was provided by project, or as part of it, did not make bond issue invalid because project was not within public purpose of district. In re Validation of East Bay Mun. Util. Dist. Water Bonds, Cal., 239 Pac. 38.

58. Negligence of Employee.-City. in appointing elevator operator for criminal court building. and in operating elevator through such operator, held engaged in discharging a public duty, and in exercising governmental function.-Howard v. City of New Orleans, La., 105 So. 443.

59. Parking Ordinance.-An ordinance which prohibited parking on public square of vehicles operated to transport passengers and freight for a remuneration, and which affected all engaged in that business, held not void as being discriminatory class legislation, notwithstanding the ordinance dia not prohibit other lines of business from parking their vehicles and conducting their business on the public square.-West v. City of Waco, Tex., 275 S. W. 282.

60. Zoning Ordinance.-The inadequacy of fire fighting facilities of village to take care of combined store and apartment house in particular district is not a justification for refusing permit for erection of such building under zoning ordinance.-Eaton v. Village of South Orange, N. J., 130 Atl. 362.

61. Zoning Ordinance.-A provision in zoning ordinance, requiring building to be set back 25 feet from street or property line, held not a valid exercise of police power, and fact that there is "considerable traffic"-"automobile and otherwise"-at intersection of street on which property fronts does not justify the restriction.-Eaton v. Village of South Orange, N. J., 130 At!. 362.

62. Negligence-Attractive Nuisance. In action for death of children through cave-in of sand wall on defendant's excavated premises, it was error to grant defendant's motion for judgment notwithstanding verdict, on finding by jury that proximate cause of accident was excavations made by chilcren, since under doctrine of attractive nuisances it is immaterial that affirmative act of child after reaching premises was proximate cause of injury.Baxter v. Park, S. D., 205 N. W. 75.

63. Resort Keeper.-Where plaintiff was injured by collapse of defective amusement device in defendant's resort while sitting in a car being driven by concessionaire to dining hall, who had stopped near such amusement to unload packages for his stand, held defendant was not relieved of lability by his concessionaire so parking where it was customary for people generally to park there. -Harvey v. Machtig, Cal.. 239 Pac. 78.

64. Oil and Gas-Lease. Where oil and gas lease required well to be commenced and prosecuted with diligence, to prevent termination of lease, and where in August drilling work was suspended till November, when well was developed as gas well, but lessors, with knowledge of default, raised no objections to continued existence of lease, they waived right to have it annulled, and by estoppel lost right to deny lease was in force when paying gas well was brought in.-Transcontinental Oil Co. v. Spencer, U. S. C. C. A.. 6 Fed. (2d) 866. 65. Payment-Duress.-A threat by a party to a contract with a charterer to abrogate the tract which would cause it great loss, unless the charterer paid an obligation of the shipowner, for which it was not liable, held to constitute legal duress. Furness Shipping & Agency Co. v. Barber & Co., U. S. C. C. A., 6 Fed. (2d) 779.

con

66. Public Utilities-Rates.-Public utility gas company held entitled to allowance for "going value" in arriving at valuation of property for rate purposes.-State v. Busby, Mo., 274 S. W. 1067.

in

Opera.

67. Railroads "Damages Sustained tion."-Damages arising from violation of Vernon's Sayles' Ann. Civ. St. 1914, arts. 6601, 6602, making railroad liable for damages and penalty for allow ing Johnson grass seed to spread from right of way to adjoining land, are "damages sustained in operation of railroad" within articles 6624, 6625, making company purchasing and taking over franchises of another company liable for all subsisting "damages to property sustained in operation of railroad" since maintenance of right of way is part of operation of railroad: "operation" meaning a course of action or series of acts by which some result is accomplished.-Missouri-Kansas-Texas Ry. Co. of Texas v. Wells, Tex., 275 S. W. 218.

68. -State Law.-State statute requiring erection and maintenance of water-closets by railroads held not intended to interfere with or place burden on interstate commerce, and any burden resulting thereto by its enforcement is incidental, and does not supersede police power of state without more explicit federal legislation by Congress.Fort Worth & D. C. Ry. Co. v. State, Tex., 275 S. W.

111.

69. Sales-Delivery.-Under new contract, by which coal company agreed to supply contract coal to buyer from all its mines, subject only to a car shortage coal company was not relieved from its obligation by proof of car shortage at two of its mines. Virginia Iron, Coal & Coke Co. v. Woodside Cotton Mills Co., U. S. C. C. A., 6 Fed. (2d) 442.

70. Searches and Seizures-Incidental to Arrest. -After arrest for conspiracy to violate Harrison Act, search without warrant of house of one of alleged conspirators, which was several blocks distant from house where arrest was made, held violative of Const. Amend. 4, and not justifiable, as incidental to lawful arrest.-Agnello V. United States, U. S. S. C., 46 S. Ct. 4.

71.- Warrant.-Beilef. however well founded. that an article sought is concealed in a dwelling house, furnishes no justification for search of that place without a warrant, and this notwithstanding facts unquestionably showing probable cause.-Agnello v. United States, U. S. S. C., 46 S. Ct. 4.

72. Taxation Gasoline. Laws 1925, C. 229. amending Laws 1923. c. 225, §§ 2, 5. 6, as amended by Laws 1925, c. 228, imposing a license tax on dealers, defined so as to apply only to importers. imposes an occupation tax and is unconstitutional both in denying importers the equal protection of the law, and as violating Const. art. 6. § 18, forbidding grant to any citizens of privileges or immunities which upon same terms do not legally belong to all citizens or corporations.-Standard Oil Co. v. Jones, S. D., 205 N. W. 72.

73. -"Manufacture." "Manufacture," in Act July 22, 1913 (P. L. 903: Pa. St. 1920, §§ 2036620368), exempting manufacturing corporations from payment of capital stock tax. means fabrication or composition of new article. of which imported material constitutes an ingredient or part-Commonwealth v. Sunbeam Water Co., Pa... 130 Atl. 405.

74. Unincorporated Association.-Shares in a voluntary unincorporated association, created under laws of commonwealth and established by deed of trust conveying real estate within commonwealth and creating a pure trust, held to constitute "property within the commonwealth," within G. L. c. 65, § 1, as amended by St. 1922. c. 403, § 1. and subject to excise tax thereunder.-Baker v. Commissioner of Corporations and Taxation. Mass.. 148 N. E. 593. 75. Theaters and Shows-Negligence.-Where patron of amusement device paid fare after being assured of its safety, but without knowledge of its nature or operation, placed herself under exclusive control of agents operating it, and suffered from accident, which in ordinary course of things was such as does not happen if those who had charge of construction, maintenance, or management used reasonable care and diligence, occurrence of accident was sufficient to carry case to jury on question of whether accident arose from want of reasonable care.-Carlin v. Smith, Md., 130 Atl. 340. 76. Vendor and Purchaser-Representation.—Falsity of vendor's representation. on which purchaser relied of and being free of coco grass, need not have been known by vendor to allow damages for presence of the grass to be offset in action for balance of price.-Hines v. Lockhart, Miss., 105 So. 449.

77. Workmen's Compensation-"Tips."-Inclusion in weekly wage of amounts received by employee as tips, not contemplated by parties in making contract of employment. held to necessitate reversal of award.-Anderson v. Horling, N. Y., 211 N. Y. S. 487.

Central Law Journal

St. Lou's, January 20, 1926.

WHEN INTOXICATION INVALIDATES A WILL

The fact that a testator was intoxicated, or under the influence of some drink or drug, at the time he made the will, does not of itself avoid the disposition if the intoxicant or stimulus does not prevent him from comprehending intelligently what he is doing (Peck v. Cary, 27 N. Y., 9; Vreeland v. Westervelt, 45 N. J. Eq., 573).

A will of a drunkard is tested by the same rules as wills by other persons, and it will be upheld if, at the time, the testator knew the nature of his estate and his will and the natural objects of his bounty (Moriarity v. Palmer, 286 Ill., 96; In re Tifft's Will, 106 N. Y. Supp., 362), and this is so even in the case of habitual intoxication (In re Heaton's Will, 224 N. Y., 22).

This rule of law is recognized by all authorities as a sound one, for in all such cases the state of mind of the testator at the time of executing the will in question is the material issue, and if the testator be then in a condition to understand what he is about, his capacity is presumed (Peck v. Cary, supra). Accordingly, proof of habitual intoxication raises no presumption that incapacitating drunkenness existed at the execution of the will (In re Mannion's Estate, 95 Atl. Rep., 988).

In commenting upon this topic Schouler, in his work on Wills, Executors and Administrators (6th ed., vol. 1, sec. 169), states:

"On the other hand, the wills of those far gone in intemperate habits should be watchfully regarded; for such persons are even more liable to imposition in transactions of this kind than to dispose ir

An excellent statement of the general rule is found in the New York case of Peck v. Cary (supra), wherein it was said: "In order to avoid a will made by an intemperate person, it must be proved that he was so excited by liquor, or so conducted himself, during the particular act, as to be, at the moment, legally disqualified from giving effect to it." The court therein also quotes with approval a statement from Shelford on Lunacy (sec. 304), to the effect that "Consequently in cases of this description, all which is required to be shown is the absence of such excitement at the time of the act done as would vitiate it; for, under a slight degree of excitement from liquor, the memory and understanding may be as correct as in the total absence of any exciting cause."

A similar rule was laid down in the case of Ayrey v. Hill (2 Addams, 206), where the validity of the will of an habitual drunkard was in question. After stating the difference between the derangement from intoxication and ordinary lunacy, the court added, "Whether, where the excitement, in some degree, is proved to have actually subsisted at the time of the act done, it did or did not subsist in the requisite degree to vitiate the act done, must depend, in each case, upon a due consideration of all the circumstances of that case itself, in particular; it belonging to a description of cases that admits of no definite rule."

In such cases it is competent, as is the universal practice in all the probate courts, to examine the dispositive parts of the will to see whether the dispositions are extravagant and unreasonable, on the one

hand, or whether, on the other, they are. such as might probably be expected from one in the situation of the alleged testator. The question is not, however, whether the gifts are such as, upon the whole, would have been advised under the same circumstances, but whether there is such a violent departure from what would be considered proper and natural, that they cannot fairly be referred to any cause other than a disordered intellect.

An interesting recent case in which the facts called for the application of the rules herein outlined is Matter of Henry J. McGuckin (N. Y. Law Journal, October 16, 1925). In that case the probate of the testator's will was contested in part upon the issue of testamentary capacity. It was alleged that the testator was an habitual drunkard, so much so that he was incapacitated from executing a will. The surrogate, after a review of the evidence introduced by the proponent as well as the contestant, and also after taking into consideration the personal appearance and testimony of the testator before him in another matter only a few months previous, came to the conclusion that the evidence negatived any finding that the testator was of unsound memory and judgment at the time of the execution of the will. His decision is in accord with the rule stated above, to the effect that “habitual and extreme intoxication is not in and of itself evidence of, or does not constitute, an unsound mind or testamentary incapacity.'

The opinion of Mr. Surrogate Foley reads as follows:

"In this contested probate proceeding the testimony clearly establishes the lawful execution of the will, the soundness of mind of the testator and his freedom from undue influence. The contestant utterly failed to establish any proof of undue influence, coercion or fraud in the procurement of the will (Matter of Ruef, 180 A. D., 203, aff'd 223 N. Y., 582). Upon the issue of testamentary capacity there is some evidence of drunkenness be

fore and after the execution of the will on June 12, 1925. 'Habitual and extreme intoxication is not in and of itself evidence of or does not constitute an unsound mind or testamentary incapacity. There must be the additional proof that at the time of the testamentary disposi tion the natural intelligence, memory and judgment were paralyzed or perverted or the power of volition inactive because of the intoxication.' (Matter of Heaton, 224 N. Y., 22, at p. 29). So in the present contest the testimony of the subscribing witnesses, and the witnesses called by the contestant, convincingly shows that the testator was clear in mind and not under the influence of alcoholic liquor when the will was signed by him. The evidence of the contestant's witness, Mr. Kinney, especially supports this conclusion. Two of the subscribing witnesses are attorneys of standing and experience. The other is a reputable business man without any interest in the outcome of this litigation. The prior will executed on March 5, 1925, discloses the same general testamentary scheme contained in the will contested here. Between March 5 and June 12 the testator appeared personally before the surrogate upon hearings in a contested accounting proceeding held on April 28 and May 7, 1925. He testified therein intelligently, with an ample appreciation of the nature of the proceeding, and a fair recollection of his transactions with his adopted son (the contestant here). In that proceeding he gave every indication of possessing the requisites of mental competency. The bad feeling which arose between father and son in that proceeding sufficiently explains the disinheritance of the contestant. The will is admitted to probate. Submit decree on notice accordingly."-The New York Law Journal.

Photographer (taking picture of father and college son): Perhaps it would look better if you put your hand on your father's shoulder.

Father: It would be more natural if he put his hand in my pocket.

NOTES OF IMPORTANT DECISIONS

SECRETARY OF STATE'S CERTIFICATE NOT CONCLUSIVE PROOF OF TITLE TO AUTOMOBILE.-The Appellate Court of Indiana, in Meskiman v. Adams, 149 N. E. 93, holds that the Secretary of State's certificate of title to an automobile is not conclusive proof of title, and may be collaterally attacked. Sald the court:

"Appellant insists that the certificate issued to her by the secretary of state was sufficient proof of her title; that such certificate is conclusive proof of her title, and cannot be collauerally attacked. Appellant seeks to give the same force and effect to the certificate issued by the secretary of state under the automobile law as are given to patents for lands issued by the national government. We cannot concur in this contention. Such patents convey title. Not so with a certificate of title issued by the secretary of state for an automobile."

BENEFICIARIES-THE LAWRENCE v. FOX DOCTRINE.-The Supreme Court of Pennsylvania has recently held, in the case of Tasin v. Bastress (130 Atlantic Rep., 417, Advance Sheets of October 29, 1925) that the fact that the plaintiffs in a contract action were absolute strangers to a compromise agreement made be tween other parties for their (plaintiffs') benefit, does not preclude them from suing upon the agreement in their own names. The court below had held that plaintiffs could not sue because they were not in privity to the contract itself, and because no consideration moved from them to the defendant. The Supreme Court of Pennsylvania, however, pointed out that if this argument were sound a beneficiary would never be allowed to sue in his own name, for he is always "a stranger to the contract," and be cause the consideration does not move from him.

In England the beneficiary doctrine, which had its origin in Dutton and Wife v. Poole (2 Levinz, 211), was in effect abrogated and wiped out even on the facts of that case, in 1861, in Tweddle v. Atkinson (1 Best & Smith, 393). That in England today the doctrine is discredited and repudiated has been recently reaffirmed by the House of Lords (Dunlop Pneumatic Tyre Co., Lim., v. Selfridge & Co., Lim., 1915, App. Cas., 847, esp. 852-5). The Massachusetts courts in this country follow the present English rule (Mellen v. Whipple, 1 Gray, Mass., 317; Borden v. Boardman, 157 Mass., 410). In the case last cited the court squarely held that there is no

cause of action in favor of "a third person, who is not a party to the agreement, and from whom no consideration moves." In most American jurisdictions, however, the rule is otherwise (see Williston on Contracts, Vol. 1, sec. 368, et seq.; Anson on Contracts, Corbin edition, chap. 9; 27 Yale Law Journal, 1008).

In New York a beneficiary has been permitted to recover, provided there is a legal or equitable obligation owing by the promisee to the beneficiary, ever since the leading case decided in 1859 by the Court of Appeals (Lawrence v. Fox, 20 N. Y., 268). In that case one Holly owed the plaintiff $300. The defendant Fox owed Holly $300 for a loan. Defendant agreed with Holly to pay $300 direct to the plaintiff Lawrence. Defendant broke his promise; plaintiff brought suit against defendant thereon. The court gave judgment for plaintiff. It should be carefully observed that there was a legal obligation, to wit, a $300 debt, owing by the promisee Holly to the beneficiary, plaintiff Lawrence.

Lawrence v. Fox (supra) was confined to its exact facts for many years (Vrooman v. Turner, 69 N. Y., 280, decided in 1877; Durnherr v. Rau, 135 N. Y., 219, decided in 1892). In the last case cited Judge Andrews, writing for the court of Appeals, said: "The application of the doctrine of Lawrence v. Fox (20 N. Y., 268) to this case would extend it much further than hitherto, and this cannot be permitted in view of the repeated declarations of the court that it should be confined to its original limits" (see also Buchanan v. Tilden, 158 N. Y., 109, 1899). A sole beneficiary, however, was permitted to recover despite this limitation. Thus, in Todd v. Weber (95 N. Y., 181, decided in 1884), a bastard child, who was not a party to a contract, was permitted to sue thereon, since it appeared that the same was entered into for her sole benefit. The court said: "As she had the sole beneficial interest in the contract" the suit was correctly brought in her name. This might be justified either under the close relationship basis of Dutton v. Poole (supra) as early expounded in England, or on the sole beneficiary theory (see Anson on Contracts, Corbin edition, pp. 338-340).

In Pond v. New Rochelle Water Co. (183 N. Y., 330), decided in 1906 by the Court of Appeals, some very general language was employed by the court, and the court approved "the broad principle that if one person makes a promise to another for the benefit of a third person, the third person may maintain an action on the promise." The early English case of Dutton v. Poole was cited by the court with approval, and without any mention of the circumstance, probably by inadvertence, that Dut

ton v. Poole had been overruled and repudiated in England, where it originated (see also Smyth v. City of N. Y., 203 N. Y., 106; Seaver v. Ransom, 224 N. Y., 233, 1918). The broad doctrine of Seaver v. Ransom has been approved by Cardozo, J., in his works on "The Nature of the Judicial Process" and "The Growth of the Law." In Seaver v. Ransom (supra) an agree ment was made between a married couple for the sole benefit of the niece of one of them, and the Court of Appeals, writing by Judge Pound, held that the niece was entitled to sue on the agreement. This readily can be justified on the ground that a sole beneficiary should be permitted to enforce the contract. The overwhelming weight of authority has so held, including the Supreme Court of the United States (National Bank v. Grand Lodge, 98 U. S., 123). Where there is also relationship by blood or marriage, of course, plaintiff's case is even stronger.

In the Pennsylvania case above referred to it will be observed that the beneficiaries of the agreement, the plaintiffs, were the only persons who could be substantially benefited by the promises contained in the agreement, and the court held that they therefore should be allowed to recover, which forecasts for Pennsylvania, as the court quite frankly said, "a movement in accordance with the general opinion."-New York Law Journal.

A Scot applied for a position as patrolman on the London police force. Here is a question they put to him in Scotland Yard and his

answer:

"Suppose, MacFarland, you saw a crowd congregated at a certain point on your beat, how would you disperse it, quickly and with the least trouble?"

"I would pass the hat."

The stock salesman, after painting a beautiful word picture, said: "Now, Mr. Jones, you know this company hasn't got a dollar's worth of watered stock in it. How much are you going to buy?"

"Young man," he said, "the next stock I buy is going to have four legs, and I will water it myself."

"I understand Crimson Gulch has passed an ordinance forbidding any citizen to buy bootleg liquor from Snake Ridge."

"Yep," answered Cactus Joe. "The Gulch is their only market. If them Snake Ridgers have to drink their own stuff there won't be any of 'em left in six weeks. We're goin' to put that there iniquitous village on the map, but we want to proceed lawful and strategic."-Washington Star.

NEW LAMPS FOR OLD

BY WM. SETON GORDON OF THE NEW YORK BAR

We lawyers as a profession have never been what you might call popular with the great body of our fellow citizens. We have never exactly been loved for ourselves alone. Jack Cade, who represented pretty fairly the views of the man in the street in his time, set out to reform existing social conditions and, as a starter, proposed to hang all the lawyers. History records that this atrocious sentiment met with warm, even tumultuous, popular approval. It has never much changed in the intervening centuries. Ask today any old hick farmer, smoking his corncob with his number elevens planted on the stove in the country store, if he knows of any trick too mean or low down to play off on a lawyer and he will answer, with feeling, that he certainly does not. Upon us, as upon the unappreciated actor whose appearance on the boards is a signal for a bombardment of spoiled eggs, wilted cabbages and dead cats, it is beginning to dawn that the public is not precisely a unit in valuing our humble efforts at their true worth.

Even our own have abused us. Chief Justice Taft, as long ago as his presidency, declared in a public address that our administration of criminal law was a crying disgrace and a stench in the nostrils of the entire civilized world; that the way we disposed of civil business was absurd, wasteful and about a hundred years behind any other present-day nation; and said other unpleasant things about us. Leaders of the Bar tell us that our law of evidence is a crazy-quilt of inconsistent patches, some of which represent an environment already passed and done with a century ago. Even the stage jibes at us; and Hamlet, in his bill of particulars filed when called on to show cause why he should commit suicide, found it necessary